Judges and Politics

April 4, 1996

SOME of the legal controversy swirling around New York federal Judge Harold Baer Jr. was resolved this week. Citing enhanced state evidence, the judge reversed an earlier decision to suppress evidence in a drug-trafficking case.

The political controversy ignited by Judge Baer's ruling and subsequent reversal, however, crackles on.

President Clinton, who appointed the judge, helped stoke the political fires. Two weeks ago White House spokesman Michael McCurry made it known that the president felt the judge's suppression ruling was wrong-headed. He even hinted that Clinton might seek the judge's resignation if the January ruling wasn't reversed.

That ruling, in fact, seemed tailored to deepen public suspicions about a judiciary soft on criminals. The defendant in the case, a woman who confessed to being a drug courier, was caught by police with 80 pounds of cocaine and heroin in her car. But the judge, weighing her taped testimony against the account given by one of the arresting officers, at first found insufficient grounds for the "reasonable suspicion" needed to justify a police search of the car.

Baer now says that added testimony from another officer, plus live testimony from the defendant, changed his mind. This unusual turn of events could be an admirable instance of judicial flexibility. It certainly appears to be an instance of political pressure brought to bear on a presumably independent judiciary.

Republicans in Congress, including presidential candidate Bob Dole, also leaped on Judge Baer's ruling, charging it was typical of decisions handed down by Clinton appointees. The president, who has striven to accumulate his own "tough on crime" credentials, seemed equally ready to make judicial appointments an issue.

The judge's reversal may temper any frontal assault on judicial independence. But with the political sparring continuing, here are a few things to keep in mind:

First, politicians are always quick to blame crime on lax judges and those who appoint them. This is simplistic. The candidate who talks about practical steps to combat crime and about the social and moral sources of crime is the one who is serious, and tough, on the subject.

Second, thrusts at judicial appointments cut many ways. To begin with, judicial appointees, no matter who named them, have a long history of thwarting ideological hopes. With life tenure, they're independent of party lines. Baer's original ruling was no more representative of Clinton appointees than the occasional libertarian judge, who favors legalizing narcotics, is typical of Reagan or Bush appointees.

Third, while Baer's January ruling may have erred on one side in assessing what's permissible in search-and- seizure cases, other judges lean too heavily the other way. Common sense is needed in this arena, but so is vigilance to uphold constitutional barriers against unreasonable police action.

Finally, the judicial system is self-correcting. But it takes a long time. Federal judges are given lifetime appointments, which afford the system stability, continuity, and freedom from political interference. Yet prevailing philosophies do shift. When it comes to rights of the accused and the leeway given police, the pendulum has unquestionably been swinging away from the activism of 30 years ago.

This year candidates will again be grabbing for the crime issue. That's legitimate; crime remains a key public concern. But voters deserve ideas for solutions, not just accusations.